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Click here for the full text of this decision FACTS:Department of Public Safety Trooper Mike Asby stopped Jose Pena for a traffic violation. As Asby approached Pena’s van, he smelled the odor of raw marijuana. Asby looked inside Pena’s van and saw what he believed to be freshly cut marijuana covering the entire cargo area. According to Asby, Pena repeatedly denied that the plant material was marijuana. He could not recall whether Pena had informed him that he wanted the plants independently tested. DPS criminalist Charles Mott tested the plant material and reported that it consisted of 23.46 pounds of marijuana. Pena filed a motion for independent analysis of the plant material, which the trial court granted. Thereafter, authorities destroyed the plant material and all records relating to the material. All that remained was a lab report signed by Mott stating that the plant material was marijuana. In a hearing outside the presence of the jury, Mott testified that he personally tested the material and found that it was 23.46 pounds of marijuana. Based upon a computer entry, Mott testified that he received a notice to dispose of the evidence and that it was destroyed one month later. The trial court took judicial notice of the fact that there was no destruction order from the trial court in the clerk’s file. The district attorney testified that he did not sign an order for the destruction of the evidence. Asby, the only other person whom Mott believed could have requested the destruction, testified that he did not remember signing such an order. Pena argued to the trial court that the report and all testimony concerning the report should be suppressed, because the destruction of the marijuana violated his right to due process under the U.S. Constitution and his right to due course of law under the Texas Constitution. The trial court overruled Pena’s objection. Pena also requested a limiting instruction, which the court denied. HOLDING:Reversed and remanded. There is no evidence, the court stated, that DPS officials acted in bad faith when they destroyed the plant material or when they lost the accompanying records. Thus, the court found that Pena could not prevail on his due process claim under the 14th Amendment, as interpreted in the 1988 U.S. Supreme Court opinion Arizona v. Youngblood. Texas courts, the court stated, have followed Youngblood fairly consistently since 1988. But the court noted that “[t]he legal landscape has changed significantly in the 19 years since Youngblood was decided, particularly in the field of evidence preservation.” The gist of Larry Youngblood’s complaint, the court stated, was that the state of Arizona had failed to preserve seven semen samples which had been collected from the body and clothing of the 10-year-old boy whom he had been convicted of sexually assaulting. (Youngblood was later exonerated.) Since 1989, however, the court found that the importance of preserving such biological evidence has increased substantially. Between 1989 and 2003, the court stated, at least 144 men and women were exonerated by DNA evidence after having been convicted of murder or rape. Pena’s case, the court stated, did not involve DNA evidence. Nonetheless, the court noted “more than 150 persons in Texas have been either wrongfully accused of crimes involving narcotics or the accusations were called into question because of tainted evidence.” The historical backdrop for the due course of law provision in the Texas Constitution, the court stated, demonstrated that the Texas framers intended for this provision to be interpreted consistent with the due process clause of the federal constitution. Nonetheless, the court found “no clear consensus among our sister states regarding whether Youngblood should apply to state constitutional due process claims. The Texas experience in the last decade and the national experience of the last two decades reinforces the concerns expressed by those twelve states which have determined that the Youngblood standard is not adequate to address the loss or destruction of potentially exculpatory evidence.” Therefore, the court joined 12 states in holding that, under the due course of law provision of Art. I, �19, the state has a duty to preserve material evidence which has apparent exculpatory value, encompassing both exculpatory evidence and evidence that is potentially useful to the defense. The court found that the error impacted the determination of Pena’s guilt, because it affected his ability to prove his contention that the plant material was something other than marijuana or that it amounted to a quantity less than charged in the indictment. Therefore, the court could not say beyond a reasonable doubt that the error did not affect Pena’s conviction or punishment. Moreover, the court held that an adverse inference instruction was the appropriate remedy for the error. The admission of Mott’s testimony and the DPS lab report without an accompanying instruction, the court stated, violated Pena’s right to due course of law under Art. I, �19 of the Texas Constitution. OPINION:Reyna, J.; Reyna and Vance, J.J. DISSENT:Gray, C.J.; “The majority’s opinion again contradicts the holdings of the Court of Criminal Appeals. Texas law to the effect that the inadmissibility of lost potentially favorable evidence is conditioned on a showing of bad faith long predates the United States Supreme Court’s interpretation of the United States Constitution to that effect in [Arizona v.] Youngblood in 1988 and affirmed as recently as 2004. . . . It is true, as appellant argues, that a defendant should be given access to contraband for the purpose of analysis when available. There are instances, however, when it is not available, such as when it is lost or is destroyed in the process of analysis. Under such circumstances it is not error to convict for possession of drugs absent the physical presence of the drug itself, providing the drug has been analyzed and the chain of custody explicated.”

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